by Jennifer Gilroy and Bart Miller

It’s hard to believe that it has been more than a quarter of a century (26 years to be exact) since Congress enacted the federal “Americans with Disabilities Act” (ADA). Since shortly after that time, the Colorado General Assembly has had a policy in place regarding services available for persons with disabilities to facilitate participation in the legislative process. The General Assembly created the policy to comply with the ADA and the terms of the final settlement of a lawsuit brought in 1993 by persons with disabilities to enforce the ADA within the Colorado Capitol.

The original “Legislative Branch Policy on Services to the Disabled to Provide Access to Programs, Services, and Activities of the Colorado General Assembly” included access to qualified interpreters, legislative staff note takers, legislative staff readers, cassette tape recordings of proceedings, and floppy computer diskettes of legislative materials, among other things. In addition to the specifics in the policy, the General Assembly implemented 17 items agreed to in the settlement of the ADA lawsuit. These items included: The installation of ramps compliant with federal law and video screens in the House and Senate antechambers (and the installation of a permanent lift to the Senate lobby following the 1994 legislative session); the availability of written legislative materials in braille upon notice; a TDD phone (telecommunication device for persons who are deaf that provides text communication over a telephone line) on the second floor of the Capitol; a van parking space in the parking circle around the Capitol; lower hooks on the public coat racks; companion gallery seating for persons in wheelchairs; “knobbles” (rubbery covers for doorknobs) for public doorways that would not otherwise remain open; and lower counters in the bill room and staff agency offices. The policy was later modified in 1998 and again in 2003, but it has not been modified or updated in the past 13 years…until now!

When legislative staff reviewed the policy during the 2016 interim, they immediately noticed outdated terminology and technology. The title of the policy itself, for example, seemed inappropriate by today’s standards.  And several of the services outlined in the body of the policy were equally outdated. Consider how much technology has changed — even your own personal use technology — in the last 13 years, let alone the last 23 years!  When was the last time you made an audio recording on a cassette tape? Would you even have a way to play a cassette tape these days?  The most recent automobile cassette deck option dates back to 2010. Automobile manufacturers have not installed them in models since that year.  Or what about floppy diskettes? Right? Clearly the policy needed dusting off and updating. But not only was the policy dated in terms of the terminology and technology, it also failed to include new technology that makes access to the legislative process easier for persons with disabilities.

So over the course of the 2016 interim, staff from the Office of Legislative Legal Services and Legislative Council Staff undertook a modernization of the policy. Legislative staff will still arrange for qualified interpreters, including those who do tactile signing. Assisted listening devices using radio frequency are now readily available, and Legislative Council Staff can arrange for communication access real-time translation (CART) services for an individual’s use.  Of course today audio recordings of all of the legislative proceedings (real-time and archived) are available on the General Assembly’s website and video recordings of House and Senate proceedings are also available. No need for a staff person to take notes or make a cassette recording anymore! While braille translation is still available upon request, this is a very rare occurrence since most individuals who are blind or visually impaired now have other technology that assists them in reading digital formats of legislative materials.

The new “Legislative Branch Policy on Services for Persons with Disabilities to Provide Access to Official Proceedings of the Colorado General Assembly” is now featured on the General Assembly’s newly launched website.

By Gwynne Middleton

If you’ve wandered the halls of the state Capitol basement recently, you’ve likely noticed visual art exhibits in the rotunda. Curious about these rotating art displays, I gumshoed my way to a conversation with Ruth Bruno, the liaison for Creative Colorado Industries, Inc.’s Creative Capitol program, to learn more about its role in showcasing Colorado artists at the Capitol.

The brainchild of Colorado Creative Industries, Inc. (CCI), a division of the Colorado Office of Economic Development & International Trade, the Creative Capitol program started in 2008 to combat the dearth of new public art hung at the Capitol. Since Capitol public art projects are usually tied to the state’s Capitol Construction funds and 2008 was far from a banner year for the state’s budget, public art was not a top priority when it came to new Capitol Construction requests. With no new public art projects to manage, CCI started Creative Capitol to provide consistent access to art for Capitol visitors and staff. Funds for this program come from the CCI budget, avoiding a financial burden for the state during both fat and lean years.

When asked how the Capitol and the general public benefit from the Creative Capitol program, Bruno explained that anyone who visits the Capitol to partake in the historic architecture and permanent art installations gets the added benefit of enjoying current works created by Colorado artists. For Bruno, providing this pro bono loaned artwork in our Capitol shows that the state not only champions art and arts programming but arts and arts programming by and for Coloradans: “[S]howcasing and supporting Colorado artists is one of the key goals of [CCI]. Artists benefit from the exposure and by having a place to show their art, and CCI benefits because we can highlight the work we do to the general public and also to Capitol staff and legislators.” This promotion of talented Front Range, as well as rural and mountain, artists reflects the artistic diversity in the Centennial State and offers legislators and other public officials an insiders’ perspective on the state they know and love.

The Capitol staff’s response to these art exhibits has been overwhelmingly positive, with numerous requests for more art to improve the quality of their offices. Since 2014, Creative Capitol has been able to meet popular demand, expanding their venture beyond the Capitol basement rotunda, with works now hung in the Lieutenant Governor’s office and the Legislative Council offices, as well as in the nearby Legislative Services Building in the Joint Budget Committee Room on the third floor and in the Committee Hearing Rooms A and B on the first floor.

If you’re in the Capitol in the next three months, be sure to stroll through the basement rotunda to view, “The Clear Creek Watershed through the Photographer’s Eye”, the newest local artist exhibit on display. A testament to the rare natural beauty of our home state, the high-quality images in this exhibit were chosen from entries in the Clear Creek Land Conservancy Annual Photography Contest, a competition calling for photographs taken in Colorado’s Clear Creek drainage basin that highlight the awe-inspiring natural areas running from the mouth of Clear Creek Canyon in Golden to the start of Clear Creek at the Continental Divide.

For more information on Creative Capitol’s prior exhibits, click here.

by Darren Thornberry and Ashley Zimmerman

Readers likely remember Y2K and all the digital drama as “the year 2000” arrived. Who recalls staying up late that New Year’s Eve to see if you still had electricity? The Internet Age was dawning, which was exciting and challenging for state governments trying to harness the rapidly changing technology for the benefit of their citizens. It was then, about 16 years ago, that the Colorado General Assembly website blinked to life, and it has been a touchstone of invaluable information for Coloradans ever since.

Not unlike the Colorado capitol building, the website has recently been under construction (behind the scenes) and now debuts as the definitive online hub for the Colorado General Assembly, chock full of user-friendly features. There’s a new web address – leg.colorado.gov. Bookmark it now – and start your tour here.

Our new homepage, showing an example of one of the available drop-down menus.

The new website is replete with tools to help make your interaction with the state legislature more enjoyable and more informative. Let’s look at the highlights!

Find My Legislator: On the homepage, click on “Find My Legislator”, which will take you to a map of the state. Here, you can enter your address or zip code and find and contact your representative or senator.

Book a Tour: Online booking of a capitol tour is made easy with an icon on the homepage that leads to a quick and simple form. Just fill out the form and click send!

Find a Bill: See all bills or browse by subject. There are two ways to access this information from the homepage. The easiest way is to click on the large “Find A Bill” icon right in the middle of the page. Or, you can hover the cursor over “Bills” in the top toolbar, which shows a drop down menu to access legislation. You can also find the most accessed bills on this page. This is one of the most requested new features on the website, and we think you’ll find it very helpful!

Ballot Blue Book: The blue books with information concerning the ballot initiatives for the past five years, including the text of the measures, are available as .pdf documents. The blue book provides voters with the text, title, and a fair and impartial analysis of each initiated or referred constitutional amendment, law, or question on the ballot.

In addition to these four front-and-center features, the General Assembly’s new website has reorganized a vast cache of information and presented it as a menu at the top of the home page with drop-down submenus as applicable. It’s never been easier to see the state budget, sign up for remote testimony at a committee hearing, browse state law, contact an agency in the legislative branch, or watch or listen to the legislative session live as it happens.

A few of these features on the new website include:

Committees: On the top toolbar of the homepage, hover over “Committees” to show a submenu for “Committees”, where you can find information and lists of the existing House and Senate committees, and “Remote Testimony”, where you can sign-up to remotely testify on a bill. On each committee’s page, you will find a list of the committee members, their meeting schedule, and, for meetings that have already occurred, a list of the hearing items, any actions taken, and links to related documents including the committee summary that shows how the members voted on motions.

The House of Representatives and Senate: To find information on either the House of Representatives or the Senate and to locate their daily calendars during the legislative session, on the homepage hover over “Agencies” in the top toolbar, then click on either “House of Representatives” or “Senate”. This will bring you to the individual page for that house, where you can find general information about the house, the rules of the house, and the daily calendar and links to listen to live audio when that house is in session.

Publications: The new website contains a number of useful and informational resources, from state reports to the annual digest of bills. To find these resources, hover over “Publications” and then click on either “Find A Publication”, if you have one in mind, or “All Publications” to see them all.

We encourage you to use the legislative agency pages for the House of Representatives, Senate, Legislative Council Staff, Office of Legislative Legal Services (OLLS), Joint Budget Committee Staff, and Office of the State Auditor. Each is a wonderful resource for getting to know that specific agency’s function, rules, publications, schedule, and more. On the OLLS page, of course, there’s a direct link to LegiSource – the very blog you’re reading now!

Stay connected to the General Assembly via the new website. Your feedback on it is welcome!

Five years ago today, Colorado LegiSource made its debut as the only known blog written by nonpartisan legislative staff for their legislators and the public. In the years since, we have posted at least one article almost weekly (okay – there have been a few weeks during the legislative sessions that we just couldn’t pull an article together). At this point we have about 172 subscribers and 819 twitter followers. For the last year, we averaged 1,937 views a month and for our entire five-year lifetime, we’ve racked up a total of 78,774 views. We may not have made eBiz’s top 15 most popular blogs list, but we’ve done okay!

We have also achieved some recognition along the way. In August 2015, the Colorado LegiSource received an NCSL Notable Documents Award. The Legislative Research Librarians staff section presents these awards annually to recognize excellence in documents that explore topics of interest to legislators and staff and present substantive material in an outstanding format. Also in 2015, the LegiSource article on “Educator Effectiveness and Senate Bill 10-191” was cited in an article on employment law issues published in the October edition of the Colorado Lawyer, a Colorado Bar Association publication.

That first day we were anxious to get started. We posted three articles: “The Director’s Welcome,” by Dan Cartin; “The Legislature’s Role in the Review of Administrative Rules,” by Chuck Brackney; and “Bill Requests – Making and keeping the five allowed by rule,” by Patti Dahlberg.

Our top five most viewed articles present an interesting mix.

The most popular article in the last five years – with 14,893 views – is “Does Colorado Have a ‘Stand Your Ground’ Law?” In this article, Richard Sweetman explained that Colorado does not actually have a “stand your ground law” but it does have a “make my day law.” The difference? Both allow a person to use deadly force to protect himself or herself in certain situations, but Colorado’s law is generally limited to protecting against home invasions and does not include some of the presumptions that are common in “stand your ground” laws. You should read the article.

The top five list also includes:

“When Can a Local Government Override State Law? Home Rule Cities in Colorado,” also by Richard Sweetman, in second place with 7,283 views;

“A New Look for the Colorado Revised Statutes On-Line,” by Revisor of Statutes Jennifer Gilroy, in third place with 1,676 views;

“What is the difference between the session laws and the statutes?“, posted in “Ask OLLS”, in fourth place with 1,331 views; and

“Powers, Duties, and Functions of Executive Branch Agencies (Type 1, type 2, and type 3 transfers),” by Rebecca Hausmann, rounding out the top five with 1,243 views.

In the first article we published, Dan Cartin, director of the OLLS, described the LegiSource’s purposes as both informational and educational, applying the experience and expertise of the OLLS staff to help legislators and the public understand the issues in many areas, including:

• Specific subject matter areas, such as water policy and education;
• Legislative procedure and process, such as committee rules and requesting and sponsoring bills;
• Recent judicial decisions, such as the Colorado Supreme Court’s school finance decision and opinions of the United States Supreme Court;
• Legislators’ rights and responsibilities, such as “Colorado Open Records Act” responsibilities and what to do if you are subpoenaed; and
• The Colorado constitution, such as the single subject requirement and the GAVEL amendment.

To this list, we’ve added fun and informative articles about the history of Colorado’s state government and of the state capitol.

We hope we’ve lived up to our purpose in the last five years; we hope that our readers have gained as much knowledge, understanding, and enjoyment in the reading as we have in the writing.

Happy Birthday, Colorado LegiSource – here’s to the next five years!

by Esther van Mourik

Legislative attorneys usually work quietly in their offices, researching legal issues, drafting bills and amendments, reviewing rules, and annotating cases. Occasionally, we get an opportunity to meet with colleagues and legislators from across the country to delve deeply into legal issues or topics that significantly affect all states. This week, I want to share with you some of the work I’ve had the opportunity to participate in for the last two years.

In 1999 the Executive Committee of the National Conference of State Legislatures (NCSL) established the Executive Committee Task Force on State and Local Taxation of Communications and Electronic Commerce to review and make recommendations to the states on simplifying the administration and collection of sales and use taxes on out-of-state transactions, particularly as they relate to telecommunications. The Task Force’s scope was expanded in 2001 to review corporate income tax law and now includes consideration of other multistate tax issues of interest to states. It is now known simply as the Executive Committee Task Force on State and Local Taxation, or SALT. The following former Colorado legislators have served on the Task Force:

• 2004-2006 – Senator David Owen (R)
• 2005-2008 – Representative Michael Garcia (D)
• 2007-2009 – Representative Don Marostica (R)
• 2010-2014 – Representative Amy Stephens (R)
• 2012-2014 – Senator Ellen Roberts (R)

In 2013, NCSL invited me to attend the Task Force meetings as a legislative staff member. Including me, there are currently three legislative staff members who serve on the committee, along with 35 legislative members from states around the nation. To preserve our nonpartisan role, legislative staff members do not vote on the policy issues or resolutions that the Task Force takes positions on.

One of the Task Force’s main missions is to see that Congress enacts legislation regarding the remote collection of sales tax. For a short primer on that issue, read this past LegiSource article.

The Task Force most recently met in Chicago, Illinois on Sunday, August 7, and Monday, August 8, before the start of the 2016 NCSL Legislative Summit. At that meeting we studied:

• General state tax trends;
• What other states could learn from tax developments in California;
• Taxation of marijuana in Colorado and Washington;
• Lost tax revenue due to “skimming;”
• The “normal tax base” as it relates to tax expenditure reports and budgets;
• State tax accounting methods;
• The impact of state tax changes on the financial reporting of publicly traded companies; and
• Emerging issues in property taxation in 2017.

NCSL staff also updated the Task Force on the status of remote sales tax collection legislation in Congress and in the states. Certain power point presentations and handouts from the Chicago meeting are available here.

The Task Force heard from Helen Hecht, general counsel for the Multistate Tax Commission, about changes in the federal tax treatment of partnerships and the need for conforming state legislation. In general, the IRS determined that new federal rules were necessary to review partnerships, including new audits at the partnership level. Because Colorado piggy-backs off the federal income tax system, if federal tax adjustments are made at the partnership level there may need to be conforming legislation in Colorado’s tax law to account for those federal adjustments on the Colorado tax return. The link to power point presentations, above, includes a presentation on this issue if you would like more information.

In one of the most thought-provoking presentations of this meeting, author and Deputy Publisher of Tax Analysts David Brunori led the Task Force in a rousing (really!) discussion about tax policy considerations for legislators. He started the conversation by saying that he would present his opinions in a way that would likely mean he would not be invited back for another meeting any time soon. Please read this article by Mr. Brunori from September 30, 2015, which lays out the advice he shared at the meeting. For legislators serving on the House and Senate Finance committees, there’s some interesting material there.

Finally, the Task Force amended and readopted the NCSL resolution regarding the enactment of the Remote Transactions Parity Act and readopted the NCSL resolution regarding passage of the Federal Digital Goods & Services Tax Fairness Act. Current copies of both resolutions can be found here. The resolutions were adopted by the full NCSL at the annual business meeting.

The next meeting of the SALT Task Force is scheduled for November 18-19 to continue our work in studying taxation issues affecting the states.

by Julie Pelegrin

Based on the most recent results from the Program for International Student Assessment (PISA), the United States ranks 24th in reading scores, 36th in math scores, and 28th in science scores out of 65 participating countries. The PISA is an international comparative test that 15-year-old students take to demonstrate their knowledge in math, reading, and science. The Organisation for Economic Cooperation and Development (OECD) administers the PISA every four years to a sample of 15-year-old students in each participating country.

The OECD also administers the Survey of Adult Skills as part of its Programme for the International Assessment of Adult Competencies (PIAAC). This instrument assesses persons from 16 to 65 years of age in numeracy, literacy, and problem-solving. The most recent survey involved 33 countries. Persons in the workforce from teens to early 30s – the millennials – in the United States scored in last place or tied for last place in numeracy and problem-solving. They scored third from last (ahead of only Spain and Italy) in reading.

Scoring in the middle to low end of the global pack is more than just a blow to our American egos. According to the report, with this level of performance in reading, math, and science, the United States “will struggle to compete economically against even developing nations, and our children will struggle to find jobs in the global economy.”

Based on the level of concern generated by a presentation on the 2012 PISA results, the National Conference of State Legislatures (NCSL) formed a study group to look at the educational systems in the top-performing countries. The study group’s goal was to identify the common design elements in world-class education systems. For the last two years, 28 veteran legislators and legislative staff, with the assistance of NCSL staff and other national and international education experts, have studied the education systems in ten of the top-performing provinces and countries: Alberta and Ontario, Canada; Hong Kong and Shanghai, China; Estonia; Finland; Japan; Poland; Singapore; and Taiwan.

Last week at the NCSL 2016 Legislative Summit, the study group released its report: “No Time to Lose – How to Build a World-Class Education System State by State.”

As is obvious in the title, the report has a clear sense of urgency. The executive summary starts with the bad news: Most state education systems are falling behind other countries’ educational achievement and failing to make progress on the United States’ National Assessment of Educational Progress. But it also gives the good news: There are common elements in the educational systems of high-performing countries that states can adapt and adopt for their own systems.

The report identifies these common elements:

1. Children come to school ready to learn, and struggling students receive extra support so that all have the opportunity to achieve high standards.
2. A world-class teaching profession supports a world-class instructional system in which every student has access to highly effective teachers and is expected to succeed.
3. A highly effective, intellectually rigorous system of career and technical education is available to students who prefer an applied education.
4. Individual education system reforms are connected and aligned as parts of a clearly planned and carefully designed comprehensive system.

The report then sets out steps that a state can immediately take to further improve and develop its education system:

• Build an inclusive team and set priorities
• Study and learn from top-performing countries and states
• Create a shared statewide vision for public education
• Benchmark the state’s education policies against those of high-performing countries and states
• Get started on changes to one piece of the system
• Work through the “messiness” of the process of designing system-wide reform
• Invest the time that it will take to implement system-wide reform

In looking at the high-performing countries, the study group recognized that most had developed a plan for public education and had implemented the plan over the course of 10 to 20 years. The group also noted that the high-performing countries did not adopt “silver bullet” strategies. Their plans for their public education systems were integrated, each element coordinated with and supporting the other elements.

The report addresses some of the objections that are typically raised in comparing the education systems in the United States with those of other countries. One of the main criticisms is the assertion that the United States is more diverse than other countries and therefore faces challenges that other countries do not. But both Europe and Asia have experienced increases in immigration in the past several decades, and some of these countries have overcome the educational challenges that stem from a student population with multiple ethnicities, languages, and religions. And the proportion of Canadian students who were born outside Canada is actually greater than the proportion of U.S. students born outside the U.S.

The report recognizes that each state is responsible for the quality of its educational system. And while each system may include the elements identified in the report, each state must modify and adapt each element to fit the uniqueness of the state’s educational system and needs.

Finally, the report concludes:

By Sharon Eubanks

In the last two LegiSource articles, we’ve talked about what a citizen must do to show that he or she has standing to sue someone to enforce a statute or to sue the government to enforce a statute or the constitution. What if the person who wants to sue is a legislator? Does a legislator have standing to sue in his or her capacity as a legislator to challenge language in the constitution? There is a case in federal court right now that is trying to answer that question.

In May of 2011, a group of legislators, school board members, and other taxpayers filed a lawsuit in federal court claiming that the Taxpayer’s Bill of Rights (TABOR) violates several clauses of the United States Constitution – including the clause that guarantees to every state a republican form of government – as well as certain federal statutes. This group asserts that, by removing the taxing power of the Colorado General Assembly, TABOR renders the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government. In July of 2015, we posted an article that more fully explains the Kerr v. Hickenlooper lawsuit.

Although Kerr v. Hickenlooper is over five years old, a court has yet to consider any of the claims raised in the case. The case has been stuck on the issue of whether the legislators have standing to bring the lawsuit. As you may recall, to have standing to sue, a person must demonstrate that she has been harmed by the person she’s suing and that she has a right to sue for that harm. In this case, the legislators must show that TABOR has harmed an interest that they have the authority to protect. If they can’t show that, the lawsuit will be dismissed.

In July of 2012, the federal district court held that the legislators did have standing to bring the lawsuit, and the Tenth Circuit Court of Appeals agreed. The matter then was appealed to the United States Supreme Court.

About a year ago, the Supreme Court issued a grant, vacate, and remand (GVR) order in the case. The order basically sent the case back to the Tenth Circuit Court of Appeals to reconsider whether the legislators have standing based on the Supreme Court’s decision in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission et al, 576 U.S. ___ (2015). The Arizona decision considered whether the Arizona State Legislature had standing to challenge the constitutionality of a redistricting commission that was created by a ballot initiative to draw congressional districts. In that case, the Court held that the Legislature did have standing because the Legislature, as an institution, had an interest in redrawing the congressional districts for Arizona that the legislature could sue to protect. In this case, the Legislature, as an institution, brought the suit as the plaintiff.

On June 3, 2016, the Tenth Circuit Court of Appeals ruled that the legislators in Kerr v. Hickenlooper do not have standing to bring the lawsuit.

Based on the Arizona decision, the court of appeals determined that the first question in deciding whether a group of legislators has standing is to decide whether the legislators are claiming an institutional injury. This is an injury to the power of the legislature as a whole rather than an injury to an individual legislator’s interest. The court of appeals concluded that individual legislators do not have standing if they are alleging an institutional injury and not an individual injury.

The court of appeals then looked to see whether the legislators in Kerr v. Hickenlooper alleged injury to an institutional interest. The court found that they did because the legislators’ claim is based on the loss of legislative power to raise taxes, which impacts all members of the General Assembly equally.

The court of appeals then asked whether the legislators who are suing have authority to represent the Colorado General Assembly as an institution and found that they do not. The legislators are pursuing their claims in their individual capacities and not as representatives of the General Assembly. By contrast, in Arizona, the Arizona Legislature as an institution filed the suit. Since they are not authorized to represent the General Assembly or either the House of Representatives or the Senate, the court of appeals determined that the legislators are not institutional plaintiffs. And that means they do not have authority to sue for an injury to an institutional interest.

As a result, the court concluded that it must reverse its previous decision and found that the individual legislators in Kerr v. Hickenlooper do not have standing because they are trying to protect an institutional interest but they do not have authority to represent the entire institution. The court then sent the case back to the federal district court.

The group of legislators, school board members, and other taxpayers filed a petition for rehearing with the Tenth Circuit Court of Appeals on July 8, asking the court to reconsider its decision based on additional arguments made by the group. The court denied the petition. At this point, it appears the school board members and other taxpayers who brought the suit will now try to establish standing to sue on remand to the federal district court. Stay tuned for further updates.

by Julie Pelegrin

In addition to telling people what they can and cannot do, the statutes may tell a state agency or a local government what it must do. If the state agency, or a local government, or a government official does not comply with the statute, can a citizen sue the government or the official?

Only if the citizen has standing to sue.

As discussed in last week’s article, to bring a civil suit, a person must be able to demonstrate actual injury to a legally protected interest. If a citizen thinks the state or a local government has failed to follow the statutes or the constitution, the citizen must demonstrate that the statute or constitutional provision creates a legally protected interest for the citizen and that the citizen is harmed by the state’s or the local government’s violation of that interest.

In these types of cases, the most important question is whether the citizen is suing to enforce a statute or a constitutional provision.

If the citizen is suing to enforce a statute, the test for standing is the same as when the citizen is suing another person. As you may recall, to sue Mr. Adams, Mr. Jefferson had to show actual injury to a legally protected interest (in our example last week, he got sick eating Mr. Adams’ eggs). If the statute did not say Mr. Jefferson had a private right of action, Mr. Jefferson had to meet a three-part test: He had to show that he was within the class of people who were intended to benefit from the  statute (the general public, who should be warned that Mr. Adams’ eggs could be contaminated); that the legislature intended to create a private right of action (in our case, the act requiring notice of possible contamination didn’t specifically grant a private right of action); and that an implied right of action was consistent with the purposes of the statute. The same test would apply if Mr. Jefferson wanted to sue the Commissioner of Agriculture for failing to inspect Mr. Adams’ farm.

A recent Colorado Supreme Court case, Taxpayers for Public Education v. Douglas County School District, considers whether a citizen has standing to enforce a statute. In this case, parents living in the Douglas County School District claimed that the school district violated the “Public School Finance Act of 1994” by allowing parents to use the school district’s public money to pay for private school. The Court held, however, that the parents did not have standing to sue to enforce the Act. The Act does not specify how it is enforced, so the Court applied the test explained above.

The Court found that the parents were within the class of persons that the Act is supposed to benefit, but the Court did not find that the General Assembly intended to create a private right of action. Also, because the Act authorizes the State Board of Education to adopt rules, the Court concluded that the General Assembly actually decided not to create a private right of action because the State Board can enforce the Act through rules. Finally, the Court held that a private right of action is not consistent with the purpose of the Act, which is to fund public education. The Court said that, to accomplish this purpose, the State Board and the Department of Education need flexibility to calculate, administer, and distribute the funding under the Act. Allowing citizens to sue every time they disagree with an agency’s decisions would impede the Department’s ability to administer the Act.

The analysis would be different if the parents had sued to enforce a constitutional provision. When it comes to enforcing the state constitution, the courts in Colorado recognize the doctrine of “taxpayer standing.” This is a broader doctrine of standing, which essentially says that a taxpayer is injured whenever the government – state or local – fails to comply with the state constitution. The Court assumes there is always a private right of action to enforce the constitution, and it does not apply the test explained above.

For example, the Colorado Supreme Court held that a real estate broker, a paint company, and an oil company had taxpayer standing to challenge the state’s transfer of money from cash funds to the general fund and its use of that money for general government purposes. The plaintiffs alleged that these actions violated the provisions of section 20 of article X of the state constitution (TABOR). The Court held that every taxpayer has a legally protected interest in ensuring that the government complies with the constitution. The government’s alleged violation of the constitution is an injury to the taxpayer’s interest, so the plaintiffs had standing.

Similarly, when Mr. Conrad sued the City and County of Denver for placing a nativity scene on the steps of the city and county building at Christmas, he claimed a violation of section 4 of article II of the state constitution, which prohibits governmental preference of a religion and prohibits the government from forcing a citizen to support a particular religion. The Court held that Mr. Conrad had standing because, as a taxpayer, he was directly injured by Denver’s alleged failure to comply with the constitution.

So why does a court assume a taxpayer is harmed by a violation of the constitution and can always sue the government, but if a taxpayer is harmed by the government’s violation of a statute, she can sue the government only if the statute says she can? Don’t citizens have a right to require the government to comply with the law, whether it’s statutory or constitutional?

It’s a separation of powers issue. The General Assembly controls the language of the statute, and the General Assembly’s intent controls the application of the statute. If the statute doesn’t give a citizen a private right of action to enforce the statute, it’s because the General Assembly did not intend to give it. And the courts, in interpreting a statute, are bound by the General Assembly’s intent.

The constitution, however, is approved by the people, not the General Assembly, and the General Assembly does not control how it is applied. The court will therefore use broader latitude in allowing citizens the opportunity to sue for alleged violations of their constitution.

by Julie Pelegrin

Statutes often tell people, businesses, and organizations what they must or cannot do. But many statutes do not include an enforcement mechanism. Criminal statutes carry a penalty for a violation, and some civil statutes include a fine structure for violations. But in many cases, the law doesn’t explain what happens if someone does not follow the law. So the question arises, “Can an individual sue someone who violates this law?”

The answer lies in the issue of standing. If Mr. Jefferson wants to sue Mr. Adams – for anything – he must have standing to sue, which means he must have actually suffered an injury to a legally protected interest. In plain English: Mr. Jefferson must show that he suffered an injury that he is entitled to sue Mr. Adams for.

If Mr. Adams fails to comply with a statute and this results in an injury to Mr. Jefferson, then Mr. Jefferson may have standing to enforce the statute by suing Mr. Adams and forcing him to comply with the statute.

Proving standing is a preliminary requirement for Mr. Jefferson’s lawsuit. If he cannot prove actual injury to an interest that the statute says he can protect, the court will dismiss the case without considering whether Mr. Adams actually did or did not injure Mr. Jefferson. This is necessary to protect the separation of powers. When the court exercises its authority, it often means the court is disapproving or annulling an action taken by the legislative or executive branch. So the court must be careful to take action only when there is a specific person making a claim based on a direct harm or interest that the person is entitled to protect.

For Mr. Jefferson to enforce a statute, he must demonstrate that the statute authorizes him to sue Mr. Adams to protect an interest created in the statute. Some statutes can be enforced by private citizens and some cannot. It depends on whether the statute creates or implies a private right of action — a lawsuit filed by a person — to enforce the statute.

Some statutes specify that an executive branch agency will enforce the requirements of a statute, and a private person cannot enforce the statute. For example, only the Department of Labor and Employment can enforce the statute that requires a public works project funded by public money to use Colorado labor. And an individual cannot sue a hospital to enforce the statute that requires a hospital to provide information and training for a designated caregiver.

Other statutes specifically create a private right of action for enforcement. For example, a citizen can file a complaint with the Secretary of State alleging a violation of the voter registration statutes, and the Secretary of State and the Attorney General may act on the complaint. But if the Attorney General does not sue on the complaint within 120 days, the citizen may file a civil action.

But in most cases, the statute is silent as to whether an individual can enforce the statute. If the statute that Mr. Adams violated doesn’t say Mr. Jefferson can sue to enforce the statute, how will the court decide whether Mr. Jefferson really has a legally protected interest in the statute?

The court will ask three questions:

1. Is Mr. Jefferson within the group of persons who are intended to benefit from the statute?
2. Did the legislature intend to create, even though it’s only implicit, a private right of action?
3. Is an implied private right of action consistent with the purposes of the legislative scheme?

Let’s suppose that Mr. Adams is a farmer who sells milk, eggs, and butter. The Warnings Against Contaminated Dairy (WACD) Act requires a farmer who sells milk, eggs, or butter to warn the buyer that the products could be contaminated. The WACD act is silent as to who enforces this requirement. Mr. Adams sells milk, eggs, and butter to Mr. Jefferson without mentioning possible contamination. After eating breakfast the next morning, Mr. Jefferson suffers a bad case of food poisoning.

As we stated earlier, Mr. Jefferson wants to sue Mr. Adams. The court will first ask, “Is there injury?” Clearly. Next, “Is there a legally protected interest?” Well…the WACD act requires Mr. Adams to issue a warning, but it doesn’t specifically say that Mr. Jefferson can sue him if he doesn’t. So, the court will consider the three questions.

Arguably, the act is intended to benefit persons who buy milk, eggs, and butter. As a buyer, Mr. Jefferson should be benefited by the act. The legislature could have intended to create a private right of action because the likelihood that a buyer would sic his lawyers on the seller every time the seller failed to give the warning is a strong incentive for the seller to comply with the act. Finally, assuming the act is intended to protect the public from accidentally buying contaminated food, allowing someone to sue to enforce the act is completely consistent with the purpose of the act.

So Mr. Jefferson probably has standing to sue Mr. Adams to enforce the WACD act. That doesn’t mean Mr. Jefferson will win the suit; he may have gotten sick from the oysters he ate at the tavern the night before. But he has standing to bring the suit.

What if a person wants to bring a suit to require the state or a local government or a public official to follow a statute? Or to comply with the constitution?

We’ll answer those questions in next week’s post.

by Julie Pelegrin

For the last 140 years, the General Assembly has been introducing, debating, amending, and passing legislation. The enacted laws may allow an official or a governing body, under certain circumstances, to waive a statutory time limit, penalty, or fee; and individuals can sometimes waive their statutory or constitutional rights. But, generally speaking, the statutes are the statutes and only the General Assembly can change them or make exceptions to them. Basic civics, right?

Usually right. But there are two areas in which elected persons other than legislators can waive a statute.

One is the Colorado Works Program, which provides assistance to needy families. Acting together, the Governor and the Department of Human Services, at the request of a county, can waive most of the statutory and regulatory requirements of the Colorado Works Program, so long as the waiver is designed to improve the county’s methods for helping people achieve self-sufficiency, meeting work participation rates and performance goals, or reducing dependency. But the Governor and the Department cannot waive statutes or rules that govern:

• Statewide eligibility for assistance;
• The amount of the basic cash assistance grant;
• The county’s maintenance of effort requirement;
• A federal law requirement; or
• A participant’s right to appeal a county decision (though the statutes that set the appeal procedures may be waived).

The other area is K-12 education. The State Board of Education can waive most of the education statutes and rules at the request of a school district, a charter school, or a district of innovation. The standards and procedures for the waivers vary depending on who is requesting the waiver.

School District Waivers
A school district board of education that seeks a waiver must first hold a public meeting to discuss the statutes it wants waived and pass a resolution stating its intent to apply for the waiver. The local board must consult with the school district accountability committee before the meeting. The local board may seek a waiver for the entire school district or only for certain schools of the district. Certain school districts must also get approval from a majority of the affected district or school accountability committee members, the affected licensed administrators, and the affected teachers before they can apply for a waiver.

Next, the local board must submit its application to the State Board of Education. The application must explain how the school district will comply with the intent of the waived rules or statutes. If the State Board grants the waiver, the district must comply with this intent statement. In a public meeting, the State Board will grant the waiver request if it finds that waiving the statute or rule will enhance educational opportunity and quality within the school district and that the costs to the school district of complying with the statute or rule significantly limit educational opportunity within the school district. If granted, the waiver continues until the State Board revokes it in a public meeting, either at the local board’s request or because the State Board decides on its own that there is a good reason to revoke the waiver.

Charter School Waivers
A charter school can also ask the State Board to waive a statute or rule. There are certain statutes that the State Board has automatically waived for all charter schools. A charter school just needs to list in its charter application or contract the automatic waivers it will be using. If the charter school wants to request additional waivers, it must list those in the charter application or contract, along with its rationale for requesting the waiver and an explanation of how it will meet the intent of the waived statute or rule. Once the charter contract is finalized, the authorizing school district must submit the charter school’s waiver request to the State Board, which has 45 days to grant or deny the waiver. If it denies a waiver, the State Board must explain why it did so. The bases for granting or denying a waiver are not clear, but when deciding which statutes to automatically waive, the State Board must consider the overall impact and complexity of the statute and the potential consequences that waiving the statute may have on a charter school’s practices. A charter school waiver continues through the term of the charter contract, but the State Board periodically reviews it. The State Board may revoke the waiver if it decides the waiver is no longer necessary.

District of Innovation Waivers
The process for waiving statutes for a district of innovation is a hybrid of the school district and charter school procedures. First, a local board must approve an innovation plan submitted by one or more schools of the district or prepared by the school district itself. The innovation plan explains the innovations that the school wants to implement that will help it improve student performance and outcomes and lists any statutes or rules that need to be waived to implement the innovations. The plan must be supported by a majority of the affected administrators, teachers, and school accountability board members.

If the local school board approves an innovation plan for a school or a group of schools, it submits the plan to the State Board and requests designation as a district of innovation. If the State Board grants the designation, it waives the statutes and rules listed in the innovation plan. The State Board must grant the designation unless it thinks the plan would actually decrease the level of academic achievement in the affected schools or the plan is not fiscally feasible. The waivers continue so long as the designation continues. There is no schedule by which the State Board reviews the designation, but the district of innovation reviews the performance of the affected schools every three years.

Statutes that Cannot be Waived
Certain statutes cannot be waived for anyone; some statutes can be waived for some, but not others. For example:

• The State Board cannot waive the school finance statutes or the data reporting requirements for school performance reports for a school district, a charter school, or a district of innovation.
• The State Board cannot waive the special education statutes or the requirements for fingerprinting and background checks of employees for a school district or a district of innovation – but it can waive them for a charter school.
• The State board cannot waive the statutes concerning state assessments for a school district or a charter school – but it can waive them for a district of innovation.
• The State Board cannot waive the accreditation and school performance statutes, the tobacco-free schools requirements, and the requirement to adopt a conduct and discipline code for a school district – but it can waive them for a charter school or a district of innovation.